Regulation of Oil-Bearing Hazardous Secondary Materials From the Petroleum Refining Industry Processed in a Gasification System To Produce Synthesis Gas; Tentative Determination To Deny Petition for Reconsideration

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of action—tentative determination to deny petition for reconsideration.

SUMMARY:

EPA is providing notice of, and soliciting written comments on, a tentative determination to deny an administrative petition submitted by the Sierra Club under RCRA section 7004. EPA issued an earlier notice denying this same petition in November 2008. However, the Agency at that time failed to comply with notice and comment provisions in its regulations. Accordingly, we are now giving the public the opportunity to provide comments on this tentative decision. This petition requests EPA to reconsider the final rule, “Regulation of Oil-Bearing Hazardous Secondary Materials from the Petroleum Refining Industry Processed in a Gasification System to Produce Synthesis Gas,” published in the Federal Register on January 2, 2008. The EPA considered the petition, along with information contained in the rulemaking docket, and has tentatively decided to deny the petition. In a letter from EPA Assistant Administrator Mathy Stanislaus dated January 21, 2011, EPA provided the petitioner with its tentative decision to deny the petition for reconsideration. The letter explains EPA's reasons for tentatively deciding to deny the petition. After evaluating all public comments, as well as any other information in the rulemaking record, EPA will publish either a final denial of the petition or issue a proposed rule to amend or repeal the regulation.

DATES:

Submit comments on or before March 14, 2011.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2008-0808, by one of the following methods:

• Electronic docket at: http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: Comments may be sent by electronic mail (e-mail) to rcra-docket@epa.gov, Attention Docket ID No. EPA-HQ-RCRA-2008-0808. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.
• Fax: Comments may be faxed to 202-566-0272; Attention Docket ID No. EPA-HQ-RCRA-2008-0808.
• Mail: Send your comments to the RCRA Docket (28221T), Attention Docket ID No. EPA-HQ-RCRA-2008-0808, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies.
• Hand Delivery: Deliver two copies of your comments to the RCRA Docket, Attention Docket ID No. EPA-HQ-RCRA-2008-0808, EPA, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-2008-0808. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Alan Carpien, U.S. Environmental Protection Agency, Office of General Counsel, Mail Code 2366A, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone (202) 564-5507; or carpien.alan@epa.gov.

SUPPLEMENTARY INFORMATION:

How can I get copies of this document and other related information?

This Federal Register notice, the petition for reconsideration and the letter providing a tentative determination for denial of the petition for reconsideration are available in a docket EPA has established for this action under Docket ID No. EPA-HQ-RCRA-2008-0808. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, because, for example, it may be Confidential Business Information (CBI) or other information, the disclosure of which is restricted by statute. Certain material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the RCRA Docket, EPA, EPA West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the RCRA Docket is (202) 566-0270. A reasonable fee may be charged for copying docket materials.

Appendix: Letter to Earthjustice Tentatively Denying the Request for a Petition for Reconsideration

Ms. Lisa Gollin Evans, Earthjustice, 21 Ocean Avenue, Marblehead, MA 01945.

Dear Ms. Evans:

This is in response to the petition for reconsideration you submitted, dated April 1, 2008, to the U.S. Environmental Protection Agency (EPA) under the Resource Conservation and Recovery Act (RCRA) § 7004(a), 42 U.S.C. 6974(a), on behalf of the Sierra Club and the Louisiana Environmental Action Network (LEAN). Sierra Club and LEAN request that EPA reconsider the final rule, “Regulation of Oil-Bearing Hazardous Secondary Materials from the Petroleum Refining Industry Processed in a Gasification System to Produce Synthesis Gas” (Gasification Rule). This final rule was published in the Federal Register on January 2, 2008 (73 FR 57, et seq.)

Your petition raises both procedural (notice and comment) and substantive grounds for seeking the agency's reconsideration of the Gasification Rule. For the reasons stated below, EPA has made a tentative determination to deny the petition for reconsideration. In accordance with the regulatory requirements of 40 CFR 260.20, EPA is providing notice of and soliciting written comments on this tentative determination to deny your petition for reconsideration in the Federal Register.

EPA notes that we issued a letter with essentially the same substantive response as stated in this letter in November 2008. However, the Agency at that time failed to comply with notice and comment provisions in its regulations at 40 CFR 260.20. Accordingly, we are now giving the public the opportunity to provide comments on this tentative decision. A notice is appearing in the Federal Register allowing the public to respond to this decision. The comment period will be 45 days from the date of publication of the Federal Register notice.

Notice and Comment Issues

Your petition states as grounds for reconsideration that the rule violates the notice and comment requirements of the Administrative Procedure Act (APA) set forth at 5 U.S.C. 553. Your basis for this assertion is that EPA “relied on” a proposal suggested in a 1998 Federal Register notice and “not on the 2002 proposed rule” to formulate the Gasification Rule. You suggest that, as a result, the final rule “is not a “logical outgrowth” of the agency's proposed rule” (Petition at pg. 7) and, therefore, “the public was denied the opportunity for notice and comment in several critical areas.” (Petition at pg. 8)

The “critical areas” to which you refer are noted below.

(1) You assert that the Gasification Rule does not contain “chemical and physical specifications of the synthesis gas fuel product that is produced by gasifying the oil-bearing hazardous secondary materials.” (Petition at pg. 8-10) In support of this assertion, you refer to statements in the preamble to the March 2002 proposal for the Gasification Rule (67 FR 13684, et seq.) and one statement in the January 2, 2008, final rule. The statements in the March 2002 proposal discuss various reasons why EPA thought, at the time, there should be chemical and physical specifications for synthesis gas produced and also express concerns as to what concentrations of metals actually exist in synthesis gas.

(2) You assert that the Gasification Rule “fundamentally alters the definition of gasification and entirely removes proposed conditions pertaining to operation of the gasifier,” particularly requirements for slagging inorganic feed at temperatures above 2,000 degrees C. (Petition at pg. 10)

(3) You assert that the Gasification Rule is not a logical outgrowth of the proposed rule and that it is insufficiently protective of human health and the environment because it did not “require that co-products and residues generated by the gasification system meet the Universal Treatment Standards if these materials are applied to the land,” even though the agency had proposed such conditions in March 2002. (Petition at pg. 10-12)

Arbitrary and Capricious Issues

You also make several arguments as to why the Gasification Rule is arbitrary and capricious. Specifically, you argue that EPA's decision not to impose the treatment requirements, for which you claim notice and comment was inadequate, was arbitrary and capricious based on certain details regarding particular chemicals. (Petition at pg. 12-13) In addition, you argue that EPA is arbitrary and capricious for relying on the Toxicity Characteristic Leaching Procedure (TCLP) to predict leaching characteristics of gasification residues. (Petition at pg. 15)

Finally, you also argue that EPA fails to regulate facilities that burn fuel made from hazardous wastes in contravention of RCRA section 3004(q), 42 U.S.C. 6924(q). (Petition at pg. 13-15) This argument presupposes that the material fed into the gasifier is a solid and hazardous waste as opposed to a non-waste material that is being recycled.

Response

EPA does not believe that you have presented the agency with any new information that would suggest or otherwise require that we reconsider the Gasification Rule, nor have you raised any issues that have not already been raised by the comments in the rulemaking process. We also believe that the Gasification Rule meets the APA notice and comment requirements and, therefore, disagree with your view that the agency did not provide adequate notice to the public and an opportunity to comment on the provisions of the final rule.

In particular, in August 1998, EPA decided not to include gasification in the petroleum refinery exclusion when it issued the final rule “Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Petroleum Refining Process Wastes; Land Disposal Restrictions for Newly Identified Wastes; And CERCLA Hazardous Substance Designation and Reportable Quantities,” (“Petroleum Listing Rule”), 63 FR 42110, et seq. The rules, issued in 1998, which were limited to the petroleum refinery industry, only require that the materials reinserted into the petroleum refining process not be speculatively accumulated nor be placed on the land prior to reuse. In the March 2002 proposal, EPA made it very clear that it was proposing to put gasification “on the same regulatory footing (i.e., excluded) as other hazardous secondary materials returned to a petroleum refining process” in the 1998 rule. In March 2002, EPA proposed a definition of gasification systems to ensure that the systems were not actually waste treatment systems, but true synthesis gas production facilities. This definition included certain operating conditions for the gasifiers, including a condition that the gasifier slag organic feed materials at temperatures above 2,000 degrees C. The proposal also suggested specifications as to various contaminants that the fuels produced contained, and specifications regarding residues. See 67 FR at 13693-96. These last three conditions are those to which you refer in your Petition for Reconsideration, as noted above.

Importantly, the March 2002 Gasification Proposal specifically provided notice that the provisions of the 1998 NODA were still being considered. It is significant that your petition for reconsideration ignores this discussion in the March 2002 proposal. In particular, the March 2002 proposal discusses in detail that the agency had requested comment as to whether the exclusion from the definition of solid waste issued in 1998 should apply to the recycling of oil-bearing materials into gasification systems at petroleum refineries and that the gasification and petroleum industries favored this exclusion (63 FR 13685-86, footnote 2). We also noted that reinserting secondary materials into gasification systems “is analogous” to the August 1998 exclusion for reinsertion of other petroleum residuals into the refining process. Id. at 13686.

In the Gasification Rule, EPA scaled back on its plans for a more “ambitious” exclusion and returned largely to its original views regarding exclusions for hazardous secondary materials returned to the petroleum refining system. See 73 FR 58-59. The final rule retained the conditions for speculative accumulation and land placement, and added a definition of “gasifier” to ensure that the gasification was indeed recycling of a product and not waste treatment. The final rule, however, as you noted, did not contain the slagging requirement in the definition, nor the fuel specifications or the residue requirements. These changes were the result of the agency's deliberations on each condition that took into account all of the comments received. The preamble to the final rule discussed in detail the fact that EPA received comments ranging from demands for full hazardous waste regulation to those arguing that the agency should not be regulating gasification at all since it was an integral part of the petroleum refining process and did not constitute waste management. See 73 FR at 59. Among the comments were those that “expressed concern with one or more of the proposed conditions” and, even if they disagreed with imposing any conditions, provided “comments on the specific conditions proposed.” ⁵ Id.

The variety and nature of comments submitted demonstrates that EPA had a record upon which to make a decision that was based on a wide range of opinions and information. Indeed, it is plain that EPA's proposal succeeded in obtaining opinions and views from a wide range of interests and allowed the agency to consider the form of the final rule carefully. In fact, as noted above, EPA decided on a far less ambitious final rule for a number of reasons. We understand that you may disagree with EPA's conclusions, but we believe that the regulatory choices made by the agency are reasonable based on the rulemaking record. In the absence of any new information, it would not be useful for the agency to revisit evidence and arguments it has already carefully considered. In our view, the notice and comment issues you have raised are actually discussions of the merits of the agency's decision with which you disagree. See 73 FR 61-67. In fact, you do not point to any information which EPA lacks to make its decision.

Finally, EPA disagrees with your legal argument that the final rule does not comport with RCRA section 3004(q). (Petition at pg. 13-15) Because EPA is providing an exclusion from the definition of solid waste for the hazardous secondary materials fed to gasifiers subject to this rule, EPA does not implicate the provisions of section 3004(q) of RCRA, 42 U.S.C. 6924(q), which requires that the hazardous secondary material first be a solid waste.

As previously stated, a notice will be published in the Federal Register announcing the agency's tentative decision to deny your petition for reconsideration and will provide the public a 45 day period to comment After considering any comments received, the agency will make a final decision on the merits of your petition.

If you should have any questions, you may contact Alan Carpien, EPA's Office of General Counsel at (202) 564-5507.

  Sincerely,

Mathy Stanislaus

Assistant Administrator, Office of Solid Waste and Emergency Response